Introduction

1. At about 07h30 on Sunday 13 April 2008 a shark-cage diving vessel, “Shark Team”, set out from Kleinbaai (near Gansbaai), taking a party of ten tourists to sea on a shark viewing expedition.  A little over 2 hours after departure, while the vessel was at anchor with a videographer in the shark cage attached to its side, it was struck by a large wave which caused it to capsize. Three of the tourists on board drowned. One of those tourists was the plaintiff’s husband, Christopher Matthew Tallman (“Tallman”).

2. The plaintiff instituted an action in rem against the vessel, and an action in personam against both the skipper of Shark Team that day, Mr Grant Tuckett (“Tuckett”) and the owner of the vessel, White Shark Projects CC (“the owner” or “the CC” ).

3. The quantum of the plaintiff’s claim, if she succeeds on the merits is, by agreement and in terms of an order previously made, to be held over for later determination.  The issues to be determined at the trial were the following:

a. Whether Tallman was married to the plaintiff;

b. Whether Tallman’s death was caused by negligence on the part of the defendants (or any of them);

c. Whether an indemnity signed by Tallman absolves the defendants (or any of them) from liability; and

d. Whether the first and third defendants are entitled to limit their liability on the basis of section 261 of the Merchant Shipping Act, No 57 1951

4. Well into the course of the trial the first question referred to above was admitted.  No submissions were ultimately made on behalf of the defendants in respect of the possible defence raised by the third issue. It follows that the issues which require to be determined are the second and fourth issues listed above, as well as questions related to costs.